The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Reece Jones of the Texas Observer has a helpful article urging the Biden Administration to end racial profiling in immigration enforcement. Racial profiling is a serious problem in many aspects of law enforcement, state, local, and federal. But, as Jones explains, this virtually the only one where such discrimination is actually endorsed by policy, so long as the profiling occurs in a "border" area:
Despite a broad public consensus that law enforcement officers should not use racial profiling, efforts in Congress to ban the practice have failed for decades. The situation is even worse in the border zone, where racial profiling is explicitly allowed for the Border Patrol and other federal immigration police based on Supreme Court decisions and the Obama administration's 2014 guidelines on race and policing, which are still in effect. The Biden administration should revise those guidelines to ban racial profiling for all federal police, including the Border Patrol, and should state explicitly that racial profiling is a violation of the Civil Rights Act [of 1964]….
In 2014, former Attorney General Eric Holder directed the Department of Justice to review federal guidelines for the use of race, ethnicity, gender, national origin, religion, sexual orientation, or gender identity in policing. The review resulted in new guidance that banned racial profiling for most federal officers, but it does not apply to the Border Patrol. Buried in a footnote, it said "this guidance does not apply to interdiction activities in the vicinity of the border, or to protective, inspection, or screening activities." At the time, a DHS official told the New York Times, "We can't do our job without taking ethnicity into account. We are very dependent on that."
The Trump and Biden administrations kept these guidelines on racial profiling in place.
The "border area" exception to rules against racial profiling is so broad that it effectively swallows the rule. As Jones notes, "the official border zone is defined as within 100 miles of borders and coastlines—a vast area that includes the homes of almost two-thirds of the United States population and many of the largest cities, including Chicago, Los Angeles, New York, and Washington, D.C."
You may not think that you live in a border area, but—as far as the Department of Homeland Security is concerned—you probably do. And if you belong to the same racial or ethnic group as suspected undocumented immigrants (or just look like you do), you are subject to racial profiling by law enforcement agencies seeking to catch and deport them.
The practical consequences of such profiling can be dire. Because of weak due process protections in the immigration detention and deportation system, the federal government routinely detains and deports large numbers of US citizens, before discovering its mistake. For obvious reasons, racial profiling increases the incidence of such errors. Victims of racial profiling are also sometimes physically abused by law enforcement. Even when (as in the vast majority of cases) racial profiling incidents end without anyone being detained or hurt, they still inflict needless suffering, and poison relations between law enforcement and minority communities.
In previous posts, I have explained why racial profiling in immigration enforcement is harmful and unjust, and also why racial profiling is a great evil more generally, and unconstitutional, to boot. Progressives, conservatives, and libertarians all have good reason to condemn the practice.
If you're a conservative —or anyone else—committed to color-blindness in government policy (a commitment I share), you cannot make an exception for law enforcement:
If you truly believe that it is wrong for government to discriminate on the basis of race, you cannot ignore that principle when it comes to those government officials who carry badges and guns and have the power to kill and injure people. Otherwise, your position is blatantly inconsistent. Cynics will understandably suspect that your supposed opposition to discrimination only arise when whites are the victims, as in the case of affirmative action preferences in education.
I don't think I need to explain in detail why libertarians should be opposed to racial profiling in immigration enforcement, or law enforcement more generally. All our usual concerns about law enforcement abuses become even more pressing when racial discrimination enters the mix—especially if that discrimination is openly condoned by policy. And, of course, libertarians are no fans of immigration restrictions generally.
Finally, if you're a progressive, and you believe ending racial discrimination in the criminal justice system is an important priority, you cannot make an exception for immigration enforcement in so-called "border" areas that actually encompass areas where the vast majority of Americans live. You especially should not do so, given the long history of racial and ethnic bias in immigration policy.
Both major political parties and all three branches of government deserve a share of the blame here. As Jones describes, the current immigration enforcement guidelines permitting racial profiling were developed by the Obama Administration, and then continued by Trump and Biden, even as Congress sat back and did little or nothing to curb them.
Jones also explains how a series of misguided Supreme Court rulings from the 1970s sanctioned at least some racial profiling in immigration enforcement, even as the Court barred state-sponsored racial discrimination almost everywhere else. This is just one of many areas where the Court has endorsed pernicious double standards under which immigrant restrictions are often exempted from constitutional constraints that bind every other area of government policy.
Jones describes ways in which all three branches of government can begin to make up for their awful record in this field:
All three branches of government could act to end racial profiling in the United States. Congress should finally pass long-stalled bills to ban racial profiling. The Department of Justice should revise its guidance and remove the exception to the ban on racial profiling for the Border Patrol and immigration officers and should make clear that racial profiling violates Title VI of the Civil Rights Act. Finally, the Supreme Court should revisit the racial aspects of the Brignoni-Ponce and Martinez-Fuerte decisions.
In the past, the court has corrected erroneous rulings, often in cases about race. Brown v. Board of Education (1954) reversed Plessy v. Ferguson (1896), which had approved "separate but equal" public facilities for different races. Despite its current conservative composition, in Trump v. Hawaii (2018), the court condemned its previous decision in Korematsu v. United States (1944), which had allowed the internment of Japanese Americans during World War II. Chief Justice John Roberts wrote, "Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and to be clear 'has no place in law under the Constitution.'" Among those symbols of America's racist past, Brignoni-Ponce and Martinez-Fuerte stand alone because they are still put into practice by the Border Patrol every day. It is time to correct those gravely wrong decisions and end racial profiling for the Texas DPS, the Border Patrol, and all police in the United States.
Sadly, though it repudiated the racial discrimination endorsed by Korematsu, the Supreme Court in Trump v. Hawaii perpetuated some other pernicious aspects of that infamous decision, at least in the context of immigration restrictions. Nonetheless, there is much all three branches of government can do to end the unjust practice of racial profiling in immigration enforcement. At the very least, the Biden Administration could easily withdraw the Obama-era guidelines permitting this practice in "border" areas, and Congress could easily ban it.
UPDATE: I should note that invoking Title VI of the Civil Rights Act of 1964 would only bar racial profiling immigration enforcement by state and local governments receiving federal funds. For example, as Jones notes, the Department of Justice is currently investigating racial profiling in immigration cases by the Texas Department of Public Safety. Racial profiling by federal officials is illegal by virtue of being unconstitutional, despite flawed Supreme Court decisions claiming that sometimes is not the case. Congress and the executive branch cannot disobey court rulings. But they can impose tighter constitutional constraints on themselves than the courts require, especially if they conclude the judicial branch's interpretation of the relevant constitutional provisions is flawed.